Mohanan Nair Sruthi, Parathu Veedu Vs. Branch Manager, M/S.New India Assurance Co.Ltd. - Court Judgment

JUSTICE SHRI. K.R. UDAYABHANU,PRESIDENT

The appellant is the complainant in CC.19/09 in the file of CDRF, Alappuzha. The complaint stands dismissed.

2. It is the case of the complainant that the residential house owned by him and covered with the Standard Fire And Special Perils Policy of the opposite parties commencing from 25.7.02 having a coverage of Rs.2,50,000/-         was damaged due to the heavy rain and flood in June/July 2007. The coverage is from 25.7.02 to 24.7.12. Severe damages such as cracks on the walls, roof and damages to the foundation and basement have taken place. The surveyor deputed by the opposite parties has only made a casual inspection. The claim has been repudiated. The complainant has claimed a sum of Rs.2,50,000/- the sum insured and compensation of Rs.1 lakh.

3. The opposite parties have filed version admitting policy coverage but contending that the surveyor has noted that the cracks and other damages seen in the building is not due to any natural calamity but due to defective construction, lack of periodical maintenance, wear and tear etc. The damages assessed is only Rs.15,658/- . The estimate submitted by the complainant amounts to Rs.1,50,000/-. The claim was repudiated as the damages are not due to the peril covered by the policy.

4. The evidence adduced consisted of the testimony of PW1, RW1, Ext.A1 to A10 and B1 to B4.

5. We find that the Forum has not considered the evidence in the matter at all but disposed of the matter in the cursory manner making certain peripheral observations.

6. We find that Ext.A4 survey report is submitted by a retired Asst. Executive Engineer of PWD. It is noted that the roof slab is seen leaking at several portions and particularly at wall joints and that there are minor cracks on walls at several points. The building is aged 9 years having RCC slab re-enforced with steal bars. The flooring is mosaic and cement concrete. The remedial measures suggested is dismantling parapet walls of roofs and reconstructing after laying cement concrete on full roof area and plastering with cement mortar. It is also suggested demolishing the cement plaster from walls were cracks are visible and re-plastering the demolished portions with cement mortar. It is also mentioned that there was heavy rain during the dates sworn in the claim form. He has observed that the damages occurred not due to flooding by heavy rain. According to him there was no damage on the foundation and basement. He has also observed that a leakages and cracks are due to carelessness and lack of supervision during construction, lack of periodical maintenance, wear and tear for 9 years. He has also applied the average clause as according to him the value of the building would work out to 3 lakhs and hence reduced the amount from Rs.18,990/- and the amount required for the repairs suggested is Rs.15,658/-.

7. The complainant has produced Ext.A7 certificate of the President of the Grama Panchayath mentioning that extensive damages has been sustained to the particular building owned by the complainant during the natural calamities of the last monsoon. Of-course, the person who issued the certificate was not examined. The complainant has also produced Ext.A10 copy of the list of persons who were paid by the State for the damages sustained to their houses during the natural calamities in 2007. The list contains the names 319 persons. PW1, the complainant has stated that the above list includes the houses situated in the vicinity of the residence of the complainant. The above has not been disputed. Further the complainant has stated that Ext.A10 list is with respect to the persons who are in the below poverty line.

8. We find that the evidence of PW1 as to the continuous rain and flooding in the area and the statement of the surveyor in Ext.B4 that there was heavy rains in the area during the period and Ext.A10 list of persons whose houses were damaged due to rains and flooding during the period as well as Ext.A9 photographs of the building of the complainant in damaged condition do establish the fact that during the rains, the house of the complainant has sustained damages. There is no case for the opposite parties that the policy would not cover such perils. The case of the opposite parties that the damages are on account of lack of maintenance cannot be approved in view of the fact that the house is aged only 9 years and is a pucca RCC construction. In the circumstances, we find that the complainant is entitled for the benefits of Ext. B1 Standard Fire And Special Perils Policy. As per Ext.B1, the coverage is Rs.2,50,000/-. The observation of the surveyor that the depreciated value of the building would work out Rs.3 lakhs and hence the average clause is applicable cannot be approved as such. B4 survey report did not contain a valuation of the building as such but only just a guess work by the surveyor.

9. With respect to the damages sustained and the amount required for rectification it has to be noted that there is no proper assessment in this regard. The observation of the surveyor in Ext.B4 that the amount required would be Rs.18890/- appears quiet on the lower side. The amount claimed by the complainant vide the claim form ie; Ext.B3 is Rs.1,50,000/- although he has claimed Rs.2,50,000/- in the complaint. Ext.A6 is the report of expenditure required produced by the complainant which is in estimate prepared by one Asst. Engineer of PWD. The above Engineer was not examined. Further Ext.B6 only contains certain calculations of the amount required. Ext.A6 did not contain the details of the existing damages although, the details worked out therein mentions earth work application of RCC around the existing foundation etc. The amount mentioned in Ext.A6 is Rs.3,60,000/-. Evidently, the same is excessive especially as the complainant has claimed only Rs.1,50,000/- in the claim submitted.

10. In the circumstances, we find that it would be reasonable to direct the opposite parties to pay a sum of Rs.75,000/- towards rectification of the defects sustained to the building. Hence, the order of the Forum is set aside. The opposite parties are directed to pay a sum of Rs.75,000/- to the complainant towards the sum insured. The amounts are to be paid within 3 months from the date of the order, failing which the complainant will be entitled for interest at the rate of 12% from 21.4.2012, the date of this order. In the result, the appeal is allowed as above.

The office will forward the LCR along with a copy of this order to the Forum.